A NextGen Blog by Marianne Swan, State University of New York, Oneonta.
A recent graduate of SUNY Oneonta, Marianne Swan is pursuing a career in the field of environmental sustainability with particular interest in food and water security. Her blog below, representing an important development NWNL has been following, presents a dynamic solution to today’s critical need to protect global freshwater resources.
Waterways with Legal Rights
As the world’s lakes and rivers face increasing threats of various pollutants, some groups are trying to grant bodies of water the legal rights of people – a new approach to protect them. “Environmental personhood” designates human rights to a specific geographical feature, allowing legal representatives to sue polluters on behalf of at-risk environments.
As a relatively new concept, environmental personhood, thus far, has predominantly been assigned to waterways that are significant to Indigenous or religious groups. The Māori people, native to New Zealand, have relied on the Whanganui River for centuries and regard this waterway as a living, ancestral being. However, since European colonization of New Zealand, the Whanganui River has been significantly altered for hydropower initiatives and polluted with mining debris and sewage. Then in 2017, New Zealand granted the Whanganui River the rights of a legal person and appointed it two guardians.1Warne, Kennedy
Nearly 7,500 miles away, a similar situation arose in South America where Colombia’s hydroelectric plants and decades of intensive mining have severely degraded the quality of the Atrato River. As well, Afro-Colombian and Indigenous communities along the river have been directly affected by pollution and violence at the hands of illegal miners. In 2016, Colombia’s Constitutional Court announced the “biocultural rights” of the Atrato River, and fourteen local residents were assigned to be its guardians.2ABColombia
Environmental personhood was also assigned to Asia’s Ganges River, one of the world’s most sacred and notoriously polluted rivers. India’s rapidly developing economy has dirtied the river to extreme degrees. Every day, 400 million gallons of sewage and 130 million gallons of industrial waste are discharged into the Ganges. One billion Indians revere the Ganges River and about 500 million rely on its water for survival. The Indian government’s attempts to curb pollution with cleanup initiatives and infrastructure projects have largely failed. As a result, in 2017, a court in the Indian state of Uttarakhand declared that the Ganges and its tributary, the Yumana, are living entities with rights. The court also required that a management board be established and assigned three officials to act as legal custodians of the two rivers.3Sen, Sudipta,4Safi, Michael
After the Uttarakhand State Government expressed concern over the river being sued by victims of floods and drownings, India’s Supreme Court overturned the state court’s decision. This case illustrates the controversy over giving human rights to non-human entities. But if corporations have the rights of people, doesn’t it stand to reason that geographical features should be entitled to certain protections as well? Perhaps more importantly, we should ask whether assigning personhood is an effective way to protect the integrity of our planet’s waterways?
The Rights of Non-Human Entities through History
The idea of legal personhood being granted to established organizations operating in the public interest appears to have originated in 13th-century Europe, when Pope Innocent IV created persona ficta to help monasteries and universities manage their finances more smoothly.5Koessler Maximilian Beginning in the 19th century, a series of American court rulings have granted an array of rights to various entities and corporations, establishing a precedent of granting rights of personhood beyond that given to humans. Two US cases in the early 1800‘s established property rights and protection in contracts for churches and universities. In 1886, the US Supreme Court opined that corporations are protected by the 14th Amendment (intended to safeguard the rights of African Americans after the Civil War). Almost a century later, the 1978 Bellotti Case used this reasoning to assert that corporations are entitled to freedom of speech and the right to contribute financially to political campaigns.6Torres-Spelliscy, Ciara
While the idea of personhood for religious and educational organizations (as well as corporations) was established long before American applications, the notion of environmental personhood is arguably even much older than that.
Humans have been personifying natural phenomena for thousands of years. In ancient Greek mythology, nymphs represented natural features and places. “Genius loci” is a Latin term used in pre-Christian Rome that refers to the unique god or spirit of a place.7Curl, James Stevens According to Greek and Sanskrit classics, sacred groves were quite common across Europe and much of Asia.8Gadgil, Madhav Laws in pre-Christian times protected environmental features with spiritual significance. In Spoleto, Italy, people were lawfully disciplined for vandalizing sacred woods.9National Archeological Museum of Spoleto About 3,000 years old, the Hindu Vedas identify the holy Ganges River as the sacred embodiment of the Goddess Ganga.10Thapar, Romila
Animism is an ancient belief system that natural features are imbued with a spirit, yet it is by no means a “primitive” concept. Today, belief in natural spirits is widespread across the globe. Animism, often existing alongside institutional religions, prevails across most of “Africa, Southeast Asia, rural China, Tibet, Japan, rural Central and South America, [and the] Indigenous Pacific Islands.”11Eichler, Alex
Does Personhood for Rivers Work?
Even in a world more polluted than ever, many – maybe most – people find the idea of lifeless, deathless corporations having the rights of people stranger than the idea of rivers or forests having protective rights.12Gordon, Gwendolyn As well, many despair that granting corporations legal protections while regarding nature as property has allowed rampant environmental exploitation and excessive resource extraction (including tar sands excavation, mountaintop removal, hydrologic fracking, ocean oil drilling, and deforestation).13Movement Rights, Women’s Earth & Climate Action Network, and Indigenous Environmental Network
As of August 2020, no lawsuits have been filed regarding the Wanangui or Atrato Rivers. As well, in 2008 the Constitutions of Ecuador and Bolivia recognized the rights of nature to thrive. Yet because polluting oil and mining industries are major contributors to these two countries’ national economies, it’s difficult for locals to challenge polluters.14Tanasescu, Mihnea Human rights are constantly being violated by pollutive industries. So it’s clear that even if waterways are granted human rights, litigation isn’t guaranteed to remedy the source of pollution.
Additionally, the logistics of environmental personhood are still developing. For example, could a river be sued by a flood victim, as suggested by India’a State of Uttarakhand? If the rights of a river that has been granted environmental personhood are violated, who will sue on its behalf? If appointed guardians of the water body lack the funds to appoint lawyers and pursue litigation, will the state provide support? Thus, at this time, the effectiveness of environmental personhood may only be effective for rich nations willing to bring polluters to court.
While the law considers nature to be property, the ways in which people view and relate with nature are changing.15Gordon, Gwendolyn In 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provided Indigenous groups with the right of privacy to sacred sites. This declaration, along with efforts to protect environmental features through personhood, signals a growing recognition of the critical relationship between humans and the natural world. Many populations want to protect significant sites because they have a meaningful connection to it. Culture itself arises from the exchange between people and place.16Gordon, Gwendolyn
The growing number of groups and nations expressing concern for natural integrity is very encouraging. If people continue to voice interest in protecting waterways and view nature as a partner instead of property, then perhaps environmental personhood can become a viable path to protecting environmental features. After all, “law is how we use power to make real the dominant values in a society.”17Movement Rights, Women’s Earth & Climate Action Network, and Indigenous Environmental Network
“A River with Rights: Community Response to Illegal Gold Mining in Chocó, Colombia.” ABColombia, August 2019. Accessed August 16th, 2020 by MS. https://www.abcolombia.org.uk/a-river-with-rights-community-response-to-illegal-gold-mining-in-choco-colombia/
Curl, James Stevens. “A Dictionary of Architecture and Landscape Architecture (2nd ed.),” Oxford University Press, 2006. Accessed August 17th, 2020 by MS. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095847893
Eichler, Alex. “Animism Is Actually Pretty Reasonable.” The Atlantic, January 2011. Accessed August 18th, 2020 by MS. https://www.theatlantic.com/national/archive/2011/01/animism-is-actually-pretty-reasonable/339112/
Gadgil, Madhav. “Sacred Groves: An Ancient Tradition of Nature Conservation.” Scientific American, December 2018. Accessed August 17th, 2020 by MS. https://www.scientificamerican.com/article/sacred-groves-an-ancient-tradition-of-nature-conservation/
Gordon, Gwendolyn. “Environmental Personhood.” Columbia Journal of Environmental Law, 43(1), 2018. Accessed August 18th, 2020 by MS. https://faculty.wharton.upenn.edu/wp-content/uploads/2019/08/Gordon-Environmental-Personhood.pdf
Koessler Maximilian. “The Person in Imagination or Persona Ficta of the Corporation.” Louisiana Law Review, 9(4), May 1949. Accessed August 17th, 2020 by MS. https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1615&context=lalrev
Movement Rights, Women’s Earth & Climate Action Network, and Indigenous Environmental Network. “Rights of Nature & Mother Earth: Rights-based law for Systemic Change,” 2017. Accessed August 18th, 2020 by MS. https://www.ienearth.org/wp-content/uploads/2017/11/RONME-RightsBasedLaw-final-1.pdf
“National Archeological Museums: National Archeological Museum of Spoleto,” 2006. Accessed August 17th, 2020 by MS. https://web.archive.org/web/20060508051332/http://www.eng.archeopg.arti.beniculturali.it/canale.asp?id=436
Safi, Michael. “Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings.” The Guardian, March 2017. Accessed August 16th, 2020 by MS. https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings#:~:text=Ganges%20and%20Yamuna%20rivers%20granted%20same%20legal%20rights%20as%20human%20beings,-This%20article%20is&text=A%20court%20in%20the%20northern,status%20of%20living%20human%20entities.
Sen, Sudipta. “Of Holy Rivers and Human Rights: Protecting the Ganges by Law.” Yale University Press Blog, April 2019. Accessed August 16th, 2020 by MS. http://blog.yalebooks.com/2019/04/25/of-holy-rivers-and-human-rights-protecting-the-ganges-by-law/
Thapar, Romila. “The Image of the Barbarian in Early India.” Comparative Studies in Society and History, 13(4), October 1971. Accessed August 18th, 2020 by MS. https://www.cambridge.org/core/journals/comparative-studies-in-society-and-history/article/image-of-the-barbarian-in-early-india/8EEEA4B54C72448960B9B313875B19AB
Torres-Spelliscy, Ciara. “Does ‘We the People’ Include Corporations?” Human Rights Magazine, 43(2), January 2018. Accessed August 17th, 2020 by MS. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/we-the-people/we-the-people-corporations/
Warne, Kennedy. “New Zealand’s Whanganui River is a Legal Person. How Will It Use Its Voice?” National Geographic, April 2019. Accessed August 16th, 2020 by MS. https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/